The Circumstances of Justice: 4. A Revised Account of the Circumstances of Justice

This is Part 4 of a four (or five) part series based on a conference-length version of a longer paper I’m currently preparing for submission to academic journals. Part 1 and Part 2 forcus on the idea of ‘circumstances of justice’ in Rawls and Hume, and each generated some deep and wide ranging discussions of the of the nature of justice and the treatment of justice in the history of philosophy. Part 3 added some brief critical analysis to the exegetical points of the first two parts.

In this section, I finally stick my neck out and offer my own account of the circumstances of justice – an account which I argue explains what is right about Rawls’s view by shedding his unsuitable Humean foundation. I believe this account addresses many of the concerns and objections raised in the comments on earlier sections, but I look forward to hearing the fresh, new objections it generates.

My plan for Part 5, which is not yet included in the full paper, is to say something more about why all this matters for our understanding of justice, independent of the interpretive puzzles focused on in the first three sections.

IV. A Revised Account of the Circumstances of Justice

In order to resolve these difficulties, we must first reject Rawls’s distinction between “objective” and “subjective” circumstances. As Rawls himself acknowledges in other contexts, what counts as a resource (and thus what counts as “scarcity”) is in part a product of the psychological and motivational features of the subjects of cooperation. For example, Rawls explicitly includes “the social bases of self-respect” among the “primary goods” which a society must justly distribute.[1] And these same social goods will figure into the ways in which our plans – particularly those dependent upon these goods – are subject to being blocked by others.

While Rawls is wrong to think that the two lists of circumstances are divided along an objective/subjective line, however, he is right to group them together in the way he does. Both Hume and Rawls use moderate scarcity as the paradigm circumstance on the ‘objective’ list. But once we emphasize the aim-dependence of both what counts as a resource and what counts as scarcity, it becomes clear that it is the mutual vulnerability of our plans that explains what holds the other members of the ‘objective’ list together. Rough equality, when combined with geographical proximity, make cooperation necessary by making us mutually vulnerable to attack. Scarcity makes us vulnerable to one another because my appropriation of some resource can thereby thwart any of your plans that depend on that resource. Moreover, the need for cooperation is heightened when these two forms of vulnerability are combined. In such cases one’s vulnerability to assault may incentivize resource hoarding, while insecurity in access to resources can serve as an incentive for exploiting others’ vulnerability to assault.

But we can also see that mutual vulnerability alone is not sufficient to require appeals to justice. If all of us were always motivated to achieve precisely the same states of affairs in precisely the same ways, there would be no conflicting claims for justice to resolve. With all wanting the same outcome in every situation, we would have no occasion to exploit (or to fear the exploitation of) our mutual vulnerability. To be clear, this is not the condition in which we want ‘the same thing’ in the way that all participants in a race want the same thing – namely, to win. This is rather it is the condition of wanting ‘the same thing’ in the way that a particular racer’s parents want the same thing – namely, for that child to win.

This further condition is what unifies the ‘subjective’ list. The diversity of life plans, diversity of philosophical/religious views, and further disagreements resulting from the burdens of judgment all serve to preclude such a unity of aims. But we must be clear that under the term ‘aims’ we include both final ends and proximate goals that may be pursued only as instruments for some further aim. Thus, even where a parent and child share the same final end (e.g. the child’s well-being), their differing judgments about how to pursue that end (e.g. eating candy or eating a healthy snack) may lead them to adopt divergent patterns of aims. And we must also add the condition of divergence in interests, in order to acknowledge the injustice of successful oppressive regimes.

Of course the circumstances of justice are supposed to make cooperation both necessary and possible, so we need to add the flip side of mutual vulnerability – our ability to act in concert with one another on shared terms. And, in the case of aims and interests, there must be some degree of partial congruence, or else we would be unable to find the common ground upon which to rest our appeals to justice. So the resulting proposal is:

Circumstances of Justice: The circumstances of justice are those circumstances characterized by (1) the mutual vulnerability of (2) a plurality of potentially interacting agents with (3) partially divergent aims and interests.

This account is able to explain what holds Rawls’s original list of circumstances together while avoiding the confusion caused by his failure to adequately distinguish his account from Hume’s. More importantly, I think it provides an illuminating picture of the basic subject matter of justice. Justice, on this account is fundamentally about finding mutually acceptable terms of cooperation that can allow us to live together in ways that tame our mutual vulnerability, even in the faces of divergent aims and interests that might otherwise temp us to neglect or exploit the vulnerability of others.

6 thoughts on “The Circumstances of Justice: 4. A Revised Account of the Circumstances of Justice”

I think this works well as a revision of Rawls. I had some reservations about the objective/subjective distinction given the aim-dependence of what counts as a resource or scarcity, but I hadn’t seen it as a serious problem. At the very least, what you’ve said here seems to address the problem and to unify the account of the conditions in an illuminating way. I haven’t got criticisms of what you say so much as questions about what you don’t say, why you don’t say it, and whether it matters that you don’t say it.

You emphasize vulnerability and the divergence of aims among a plurality of agents, and these are surely central to any account of the circumstances of justice. What this seems to leave out, though, is the positive role of co-operation and the need for standards of justice even in cases where vulnerability and divergent aims are not in play. To take a well worn example, consider sailors on a ship. They all have the same goal, getting to their destination with their lives, their cargo, and the ship in good shape. They can do this best, and perhaps only do it at all, if they co-operate. But even supposing perfect willingness on each sailor’s part to do whatever needs to be done, it seems that they need some standards to guide their co-operation. Two that come to mind are (1) that each should take on whatever role he can perform better than the others and (2) that they should otherwise distribute burdens equally. In one way vulnerability still plays a crucial role, because they won’t achieve their shared goal if they don’t co-operate well, and that might even mean drowning. But assuming that none of them have conflicting aims and that all are willing to do what they can, they will not be vulnerable to each other; yet even these perfectly willing and perfectly unconflicted sailors still need to know just what it is that each of them should be doing — just what ‘their part’ amounts to. So even when we take divergent aims and vulnerability to attack out of the picture, there still seems to be a role for justice.

Similarly, you emphasize the diversity of life plans and worldviews, as we can hardly fail to do given the societies we live in today. But while this diversity certainly creates special challenges for thinking about justice, it does not seem to be a necessary feature of the circumstances of justice. This is not only because there have been and could be societies that lack a diversity of worldviews and yet still need justice, but because injustice seems possible even when people’s life plans don’t diverge. Consider your example of parents who share the aim of the child’s well-being. Suppose that they don’t disagree about what will best promote that end and that both give it priority over their other aims and are willing to do their part. They might nonetheless adopt an unjust division of labor in co-operating for the sake of the child’s well-being. They might both agree that the division they’ve adopted is the right one, and yet for all that it might place far greater burdens on one of them than the other; obviously I have something like traditional gendered division of parental labor in mind here. The problem here might be not only that a different division of labor would in fact be better for the child and therefore more conducive to the parents’ shared goal, but that even though both parents prioritize that goal, the division of labor in fact imposes more sacrifices on the well-being of one parent than the other. This problem can’t be fully captured by pointing to their divergent life-plans, because the parents might both believe that there is nothing out of order about their arrangement, and it might not run contrary to the preferences of either. We don’t have to engage in mere thought experiments to see how this would work; the literature on adaptive preferences among women in traditional societies with a strong gendered division of labor (I’m thinking especially of Nussbaum’s discussions of India) shows that this actually happens. What this suggests to me is that the fundamental feature that makes justice and injustice possible is not so much diversity of life-plans as it is the separateness of persons. We don’t need to adopt a robust metaphysical conception of separateness to see the point; we just need to see that what promotes one person’s well-being does not ipso facto promote another’s, and likewise for what detracts from a person’s well-being. Provided that well-being is not a mere matter of preference-satisfaction and that de facto agreement is not sufficient for justice, separateness makes injustice possible and makes justice conditionally necessary quite apart from divergence in aims; separateness likewise seems to play a crucial role in explaining divergence in aims when aims diverge, and why divergence in aims is not irrational or simply a brute, amoral fact that we have to deal with, but decidedly reasonable and in many cases good.

So my two worries are that your account understates the positive role of co-operation and gives too strong a role to conflict and divergence of aims. I wonder what you think about that in general, but I also wonder whether it’s really implicit in your account after all. I imagine that depends on just how we understand vulnerability and the divergence of aims.

Leave it to me to do the hard thinking on this blog, but I’d like to pose a difficult taxonomic question about your project, Derek: Do you see it as an instance of a Brennan Type (2) or a Brennan Type (4) project? Or is it a hybrid of those two types? (Or does [2] entail [4]?) Granted, Brennan is talking about dissertations and we’re discussing a post-dissertation paper, but I’m just wondering whether the Brennan Typology has general application, and if so, how it applies here. Assume ex hypothesi that the taxonomy is exhaustive of the relevant logical space. (Also assume ex hypothesi that gratuitous insults at other peoples’ expense is really hilarious.)

Wow, I usually kinda like reading Brennan, but that is just obnoxious. (Anecdotal digression: I am pretty sure that a few years ago I bombed a job interview that had been going really well simply by mentioning Brennan’s The Ethics of Voting as a worthwhile piece of writing to assign to students for in-class discussion. I probably did myself in by not only describing the book’s main thesis, but explicitly mentioning that Brennan takes himself to be a libertarian, without saying anything nasty about him or the book in the process; hitherto I’d been inclined to blame reactionary antipathy to libertarianism for this outcome, but now I’m inclined to just blame Brennan on the grounds that he is an asshole). In any case, I’m happy to report that my dissertation does not fit into any of those categories. Then again, it was a classics dissertation, and I’m pretty sure Brennan would regard my entire discipline as insufficiently worthy of existence, so perhaps it’s no surprise that we transcend his capacity for easily categorized condescension.

I don’t want to detract from Derek’s point, but since I started this: Actually, Brennan has great admiration for classics on the grounds that it requires great rigor (I think he majored in it as an undergrad, or started in it). And I’d be inclined to regard an interviewer of the sort you describe as the bigger asshole than Brennan.

That said, “asshole” is the correct designation for Brennan. He flags the post as “humor.” But “humor” for Brennan is invariably a matter of shitting on someone else: that’s what he finds hilarious. There’s the feeble ex post facto attempt at self-deprecation: his dissertation was a Type 1. The problem is that, in context, indicting oneself of having written a Type 1 dissertation is as much a case of vindication as it is of self-deprecation. Pretty fuckin’ hilarious! Just rolling on the ground here clutching my gut. Then you look over the categories and think: could all those dissertations really be as stupid as is required by Brennan’s half-assed attempt at humor? Probably not. It’s just that, for obvious reasons, the objects of the humor can’t push back. While we’re at it: if dissertations fall into Brennan’s categories, why doesn’t scholarship by junior scholars generally do so? Is it really plausible to believe that all of that scholarship is as stupid or vacuous as Brennan needs it to be? No, it isn’t.

What I find telling about Brennan’s list is that the political theory categories include nothing on feminism or post-colonial theory. Is that because nothing is being written on those topics, or because Brennan hasn’t read any dissertations on those topics, or because mentioning them would defy the premises of his “joke”?

To my mind, the biggest and lamest bluff is (7). “…pretty much every major political thinker in the West has been studied to death.” Put aside what counts as “the West.” Put aside the fact that comparative political theory is now a thing. Put aside the fact that non-Western political theorists don’t necessarily theorize in the same way that Western ones do. And put aside the fact that it is eminently possible to write a good dissertation on a minor thinker. Isn’t it just laughable to think that every major political thinker in the West has been studied to death–i.e., studied to the point of diminishing returns, so that there’s nothing original and important to be said about them? Aquinas? Locke? Aristotle? Studied to death? That’s not funny–it’s just stupid. Or rather, it’s temporary self-willed stupidity in the service of a half-assed attempt at humor.

Finally, I don’t know about Chaucer, but what would be wrong with a dissertation on the political theorizing of, say, Dante, Milton, or Shakespeare? Or the implications for political theory of a set of novels or a type of poetry? Or the Bible or the Qur’an? You don’t have to “have a theory” to offer thoughts of value to politics and political theory, and you don’t have “have a theory” to furnish a suitable topic for a dissertation on political theory. He thinks he’s joking, he really is a philistine with an overly narrow conception of political theory.

None of this would be noteworthy if it weren’t for the incessant, bombastic triumphalism that accompanies every thing he says: it’s not just that he has his obnoxious-ass opinions on what counts as real political theorizing, it’s that he’s using his position and prestige to shape the field in the direction of those opinions. And to some degree, the field seems only to eager to be shaped in that way.

OK, that was a digression from Derek’s paper, and I’m not going to say any more about it.

Oh, while I suspect that Brennan is far from alone in having this sort of attitude toward a majority of young, unestablished people working in his fields, I also suspect it’s far from a majority opinion. Reading the combox on blogs like Daily Nous suggests that it isn’t, at least. Of course, numbers matter less when people who take this attitude have positions of prestige and influence, but while I can’t speak for the influence that his real work will have on the field, I don’t think the otherworldly hubris and sheer contempt will mange to infect most philosophers, if only because there are far more philosophers who aren’t in the sort of prestigious position to allow themselves to suffer the kinds of of delusions of grandeur that sustain that sort of thing.

I’m curious. Have you encountered Brennan’s sort of attitude in any of the really outstanding philosophers of the past generation that you’ve met? I can’t imagine someone like MacIntyre or Putnam expressing themselves that way, despite the former, at least, having a rather low view of contemporary academic philosophy. I’ve only met a few people who are even remotely on that level, and I’ve never known any well, but I likewise can’t imagine them going on the Internet to ridicule the plebeian members of the field.

I know you said you wouldn’t say any more about it, though, so perhaps that’s a question better answered at another time. I too would much rather read more about Derek’s stuff.

(1) It is easy enough to read Hume, or create a recognizably Humean “Hume+” position, according to which (a) the misunderstood and badly-named “objective” list concerns instrumental conditions relevant to practical ends and (b) the “subjective” list concerns what the relevant practical ends are (perhaps considered as motivations, perhaps considered as normative reasons or normative-reason-makers). If this is right, then, Derek, your “Rawls+” position simply substitutes practical plans for practical desires/ends and emphasizes plan-blocking more than desire-frustration in describing our mutual vulnerability. And, if this interpretation of Hume is correct, then it is easy for a “Hume++” position to allow for the plan-frustration element of mutual vulnerability to be quite important. And the relevant difference between your Rawls+ and my Hume++ is negligible or just a matter of degree (at least absent bringing in Rawls’ concern with how our plans are bound up with our diverse, conflicting conceptions of the good and our desire to have these conceptions and plans recognized by others).

(2) If the broad model for both thinkers here is “practical problem, justice-y or what-we-owe-each-other-y solution,” it might be a bigger difference that, for Rawls, the most intense form of potential conflict and plan-blocking concerns (a) our having differing, incompatible visions of the good (the good life, what is universally good for all – not sure what the best or most accurate way to fill this in is) and (b) a moral psychology according to which we are claim-makers who make claims on behalf of our visions of the good (and, in a similar vein, demand recognition of our conception of the good). Intuitively, this makes the vulnerability problem much more psychological (rather than material-resource-centered) and also potentially much worse. For one of the most important, arguably the most important, all-purpose instrumental good (not dependent on or a function of our differing visions of the good) is precisely our need for recognition of our differing visions of the good of the claims we make on behalf of them in forming and carrying out our life-plans.

(3) Another big difference between Rawls and Hume is that Rawls can explain why there is a justice-y moral solution to a practical problem (at least in a way) whereas Hume cannot. For – at least arguably – for Rawls, the antecedent reasons that justify conventional justice are reasons or principles *of justice* in a robust sense. It is at least consistent with Rawls’ view that we have basic moral reasons to be claim-responsive to others in familiar ways (if the content of their claim-making is of the right sort). On Hume’s view, the whole business of making and being sensitive to claims (with the right sort of content) has to be something akin to a sophisticated human invention for the practical problem of achieving the mutual benefits of cooperation at an acceptable cost. If our intuitions here are to be trusted at all, Hume will also have a problem justifying the deontic motivational or normative elements that seem to be associated with what we might call “the psychology of justice” – our reactive attitudes and closely-related claim-making and claim-responsive behavior.

(4) If our conventions-of-justice-antecedent reasons or principles are of the claim-responsive, justice-y type (as, I think, Rawls would have it), then there is little reason to think that basic considerations of justice are not applicable to all social attitudes and actions. If you and I share the same goal and specific plans, there are still questions of appropriate sharing of benefits and burdens (relative to the other ends that we don’t share; things have to get pretty exotic in order for there to be no such potential difference in cost). Quite plausibly, if cooperation is too costly given the circumstances, we have some justice-y, respect-for-persons-y reason to have something like attitudes toward each other as conditional claimants to recognition and respect (and some reason, however much outweighed by others in the circumstances, to strive to change the circumstances such that cooperation is possible). And quite plausibly, we have reasons (of justice) to wish that cooperation were possible when it is not. Etc. At least with respect to reasons bearing on behavior (as against bearing on attitude), in these not-propitious-for-justice situations reasons of justice, while present, do not win out.